The Civil-Rights Era Ended Today

June 25 (Bloomberg) -- The civil-rights era ended today --
or at least that’s what the historians will say about the U.S.
Supreme Court’s 5-to-4 decision to strike down Section 4 of the
Voting Rights Act of 1965 as unconstitutional.

Congress enacted that law -- one of the two crown jewels of
the civil-rights movement -- because blacks were being denied
access to the vote through unfair state-imposed tests in the
still-segregated South. Passed a century after the Civil War
ended, the law represented a sincere attempt by Congress to make
the 15th Amendment’s right to vote actually meaningful.

By striking down that law as an outmoded infringement on
states’ rights, the court has flipped the rules once and for
all: The justices, and not the elected Congress, now decide what
remedy is needed to effectuate the most basic right in a
democracy.

The mechanics of the decision were straightforward. Chief
Justice John Roberts explained that, in 1965 and beyond, it was
perfectly appropriate for Congress to insist that counties with
voter registration tests and voter registration below 50 percent
be subjected to special rules. (His decision today noted that
those tests, designed to block blacks from voting, “included
literacy and knowledge tests, good moral character requirements,
the need for vouchers from registered voters, and the like.”)
Originally enacted for five years, the VRA was extended
repeatedly. Its remedy was that any change to election districts
or voting rules in state laws would have to be “pre-cleared”
by the Department of Justice before being allowed.

Discriminatory Tests

However, almost 50 years later, Roberts wrote, this method
of designating what locations would be covered by the VRA has
become unconstitutional. What has changed, Roberts explained, is
that old-fashioned discriminatory tests are now a thing of the
past -- in large part, he acknowledged, because of the success
of the VRA. As a result, the most recent extension in 2006, for
25 more years, violated the states’ inherent rights to
“dignity” and “equal sovereignty.” The affront, in this
view, consists of one state having to wait for the Department of
Justice to approve changes in its laws, while other states can
proceed apace.

It’s worth pausing for a moment to notice that this is a
strange conception of why the VRA should be struck down.
Certainly the Constitution must protect the existence of the
states within the federal system -- but a state’s capacity to
change its districting quickly hardly seems to lie at the core
of its continued vitality. Redistricting is everywhere a
politicized, ugly business, in which state legislatures game
local boundaries and borders to shape results that will serve
some political parties and actors while disadvantaging others.
Is the right for states to gerrymander quickly really more
essential than the right of every individual citizen to vote?

But the formal rationale for striking down the VRA isn’t
where the real action lies. The truth is that the conservative
majority, with Justice Anthony Kennedy providing the deciding
vote, sees itself as capable of judging when the wheel of
history has turned. A law designed to address a century of
denying voting rights to blacks, enacted when Barack Obama was a
toddler, looks different during his second term as president.

Sophisticated Racism

“Voting discrimination still exists, no one doubts that,”
the majority said. Today, we all know, voting discrimination
operates very differently than it did before the rise of civil
rights. Discrimination today is subtler, more sophisticated and,
above all, broader-based. It isn’t restricted to the counties of
the Deep South that remain covered. Just ask Latinos in Arizona,
where a law recently struck down by the justices would have
imposed the extra-legal obligation to provide proof of
citizenship when registering by mail.

From the court’s perspective, these changes ought to be
reflected in constitutional judgment. This means that if
Congress simply renews old laws with minor changes, it hasn’t
kept up with the times. Ordinarily, we would think that the
legislature is the right institution to keep our system up-to-date. It’s not as though the VRA that was struck down is
actually 50 years old; it’s more like seven years old, dating
back to the renewal in 2006. But when it comes to many big
issues -- race, sex and sexual orientation -- the Supreme Court
has come to see itself as in the driver’s seat, supervising
Congress and elected legislatures. Voting is, of course, the
crucial democratic right. But if the court sees itself as a sort
of inspector of democracy, it follows (more or less) that it can
and should intervene when Congress is addressing the right to
vote.

Among liberals, there will be the gnashing of teeth
appropriate to such an important historical moment. In her
dissent for the four liberals, Justice Ruth Bader Ginsburg cited
eight examples -- in bullet points, no less, almost unheard-of
in a Supreme Court opinion -- of relatively recent
discriminatory efforts by covered jurisdictions. She pointed out
the absurdity of thinking that the covered jurisdictions aren’t
especially vulnerable to racist voting discrimination.

Fault Line

But Ginsburg’s chosen metaphor compared the danger of
racism in those locales to the danger of earthquake in
California, thus missing the core of the majority’s view. Race
may be the San Andreas fault in American life, but racism is a
product of culture, not nature -- and so it can change and alter
in real, observable time, not with the geological ages. In this
instance, the conservative majority thought, the Constitution
must accommodate recent historical change.

When it comes to the term’s two same-sex marriage cases, of
course, the situation will be reversed: The liberals will want
the court to interpret history to override legislation, and the
conservatives will wail about judicial activism. But the truth
of our constitutional moment is that both sides believe deep
down that the court should interpret the Constitution
aggressively in light of the historical moment we now occupy.
Liberals and conservatives aren’t really arguing about the
function of the Supreme Court: They are arguing about the true
meaning of our historical moment today.

(Noah Feldman, a law professor at Harvard University and
the author of “Cool War: The Future of Global Competition,” is
a Bloomberg View columnist. Follow him on Twitter at
@NoahRFeldman.)